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Mexican Supreme Court overrules an injunction ordering an ISP to block access to a webpage on freedom of speech grounds

by Kiyoshi Tsuru, TMI Abogados, Mexico

On April 19th, 2017, the Mexican Supreme Court of Justice resolved the Amparo Recourse of Review 1/2017, a case in which a precautionary measure issued by the Mexican Institute of Industrial Property ordering an internet service provider to block access to a website, was challenged.

The Second Chamber of the Supreme Court considered that those kind of measures affected freedom of speech on the Internet and, hence, for them to be deemed constitutional they must: (i) be established in law, (ii) pursue a legitimate objective, and (iii) be necessary and proportionate.

The Court determined that a precautionary measure that obliged an ISP to block “the totality of information, data and expressions of a website” does not comply with the third requirement. Therefore, a generic prohibition requiring the whole functioning of a website to be blocked not only restricts access to works allegedly protected by copyright, but also entails an act of censorship that jeopardizes the freedom of speech of Internet users.

The Court stated that it is unconstitutional for IMPI –arguing the protection of works– to order the complete blocking of the information, data and expressions contained in a website, thus impeding access to it.

The precautionary measures concerned in this case are indeed established in the Law of Industrial Property and pursue a legitimate objective, but they do not meet the necessity and proportionality requirements, because restrictions of free speech must refer to specific content. Therefore, generic prohibitions about the functioning of certain websites may violate the human right of free speech.

By restricting all information, data and expressions of a website, and not only those which are allegedly infringing third parties’ rights, the imposed precautionary measures imply an act of censorship, not only of the contents generated by the owner, manager or responsible of the blocked website, but also upon the flow of information and expressions that might derive from the exchange that users carry out on that website.